California federal case features familiar debate over whether fluoridation should continue, including in Oregon.
In a broadcast that rewound the clock to pre-coronavirus times, a live-streamed federal trial in San Francisco revisited the fluoridation debate that gripped the city of Portland in 2013.
Since June 8, Food and Water Watch, the Fluoride Action Network and other groups have engaged in the unprecedented and potentially historic federal trial online, having sued to force the U.S. Environmental Protection Agency to block the addition of fluoride to drinking water to fight cavities.
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA – Federal District Judge Edward M. Chen in San Francisco (lower left) is ruling on a case that could affect Oregon communities that fluoridate their water.
Seven years ago in Portland, lawn signs sprouted and arguments broke out as two camps of people debated — up close and with no masks necessary — whether the benefit of putting fluoridation chemicals in drinking water outweighed the risk of harm.
In the end, Portlanders rejected the position of the federal Centers for Disease Control and Prevention, and the American Dental Association, voting fluoridation down by a large margin.
Now Portlanders will see if a federal judge, Edward M. Chen, endorses that decision. Both sides made their closing arguments June 17, broadcast through the court’s webpage.
The trial’s outcome could affect the many communities in Oregon that do fluoridate. It could have an impact on other environmental issues as well. Already, the plaintiffs have enjoyed unprecedented success in forcing consideration of recently published studies under a federal safety law. If they win, it could reshape environmental protection for years to come, according to the publication Bloomberg Law.
The groups suing EPA have called as witnesses the scientists who conducted a recent series of long-term studies of human exposure in Canada and Mexico, some approved and funded by the U.S. National Institutes of Health. The studies connected even the low levels found in fluoridated water to subtle impairment in developing brains, such as attention-deficit hyperactivity disorder and an average loss of several points of IQ.
But supporters of fluoridation, including some scientists, portray the studies as flawed, inconclusive and potentially biased — an argument that’s also been made by the EPA’s lawyers in court in arguing any conclusions would be premature.
The EPA points to still other studies, including a forthcoming study that has not yet been published, that do not find harm from fluoridation.
It’s unclear when the judge will issue his ruling, and whether it will be appealed.
The Fifth Amendment protects the right to life, liberty, and property. This week, the Supreme Court should take a critical step to protect the private property rights of farmers and ranchers in the Western states. Their rights were infringed upon by a lower court ruling that upended the water laws of the region and abandoned over a century of federal deference to state law for adjudicating and administering water rights.
The Supreme Court is considering whether to grant review in Baley v. United States, a case that involves bedrock principles of Western law, federalism, and the Fifth Amendment. In the West, the use of water for irrigation is a property right, earned by diligent work and beneficial use of the water. The conflict in Baley centers on the federal government taking water developed and stored solely for irrigation uses authorized through the 1905 Klamath Project.
In 2001, after a century of providing safe and affordable food, farmers had their water reallocated to protect endangered species. Specifically, based on advice from wildlife agencies, the Bureau of Reclamation redirected the farmers’ water to the Klamath River to boost instream flows and required all the remaining water to be left in Upper Klamath Lake to provide extra water for two species of suckerfish that live there.
Adding insult to injury, the Natural Resources Council of the National Academy of Sciences found that there was no scientific basis for taking the farmers’ water; more water, it noted, would not entail more fish. But that finding was too late, and the only possible redress was through the courts. The farmers’ claim was simple: Society chose to adopt and implement the Endangered Species Act in a way that took their property, and so, under the Fifth Amendment, the government is required to pay for the property that it took.
Unfortunately, justice has been long delayed. The case saw delays, appeals, and remands in the federal court system. It even required a side trip to the Oregon Supreme Court, which corrected the federal trial court’s misunderstanding of Western water law principles.
Eventually, 16 years after the taking, the trial court recognized that many of the involved water rights were compensable property rights of the landowners. But the trial court and the Court of Appeals went on and made findings that have upset many public and private entities throughout the West. In particular, the lower courts found that there were, as of 2001, senior federal reserved water rights for the benefit of tribal fisheries, which, by their existence, meant that the farmers really didn’t have a right to the water to begin with.
However, this post-hoc rationalization is flawed. Even if there was a reserved right, these courts ignored the Supreme Court’s 1978 ruling, which limited the quantity of a reserved right to the “minimum amount” necessary for the primary purposes called out in the act establishing the reservation. Subsequent rulings establish that the date of priority of a reserved right is the date of the establishment of the act.
Water rights law is complex and determined and quantified in state adjudication proceedings. Also, states administer water rights based on relative priorities of all parties in a system. By contrast, here, the water was taken from one group of parties under the ESA based on opinions of federal agency staff. Court decisions limiting reserved rights, state authority over water, and state water law were ignored. Also, the farms and ranches rely on water that is stored in reservoirs during relatively wet periods for use during the dry summer. Water stored for irrigation under state law cannot be subject to a federal right claim, but the lower courts did not bother to sort that out.
The federal circuit court’s decision is disruptive, inconsistent with Supreme Court precedent, and at odds with fundamental principles of Western water law. “Friend of the court” briefs have been filed by scores of parties, including the American Farm Bureau Federation, the Oregon Water Resources Congress, New Mexico’s Middle Rio Grande Conservancy District, the Association of California Water Agencies, the Pacific Legal Foundation, and legal scholars.
The issues in Baley are of broad Western and national importance. The Supreme Court should accept the petition for review of the case to honor the Fifth Amendment and respect the principles of cooperative federalism that guide Western water rights and the economies that depend on those principles.
Rep. Greg Walden represents Oregon’s 2nd District in the U.S. House. Rep. Doug LaMalfa represents California’s 1st District in the U.S. House. Cliff Bentz is an Oregon state senator.
Drawing on the long history of Oregon water rights, the Oregon Court of Appeals on June 10, 2020, issued an opinion in WaterWatch of Oregon v. Water Resources Department that carries significant implications for hydroelectric projects as well as for water rights more generally. Taken at face value, the case turns on an apparently technical dispute about how to interpret two Oregon water statutes, ORS 543A.305 and ORS 537.348. The implications of the case, however, are far broader, underscoring the importance of water rights for hydroelectric projects, both as a legal prerequisite for operating a hydroelectric project and as an asset that remains after a project is decommissioned.
Oregon has long recognized hydroelectric power production as a valid use of the state’s water resources. Currently, the state allows the owner of a hydroelectric project to obtain a permit to use the water for production of power for the term of the project’s federal license, which generally runs for 40 to 50 years. The WaterWatch appeal addresses what happens at the end of this term, when the water is no longer used for hydroelectric production.
The answer turns on two relatively recent additions to the Oregon water statutes. The first, ORS 543A.305, was enacted in 1999, as a wave of federal hydroelectric power licenses issued in the first half of the twentieth century were expiring. The statute provides
“[f]ive years after the use of water under a hydroelectric water right ceases,” that water automatically converts to a permanent in-stream flow right held in trust for the public.
In-stream flow rights, intended to protect aquatic species and habitats, were also recognized by the second Oregon statute on which the case turned, ORS 537.348, enacted in 1987. That statute authorizes the Oregon Department of Water Resources (DWR) to purchase, lease, or accept donations of existing water rights for in-stream flows. Those rights must then be certificated and are treated the same as any other water right, with senior rights taking priority over junior rights. Water rights transferred under the statute retain the priority date of the original water right, so may have a very high priority if older water rights are transferred.
The dispute over application of these statutes arose from water rights associated with a small hydroelectric project, originally constructed in about 1905, on Rock Creek, a tributary of the Powder River in Eastern Oregon. Oregon adopted a system of water rights based on prior appropriation – the familiar “first in time, first in right” system that now governs nearly all water rights in the Western states – in 1909, and in 1923, the DWR issued a water rights certificate to the project owner, Eastern Oregon Light & Power Co.
Following adoption of the Federal Power Act, which established a system of federal licensing for hydroelectric projects, the project was licensed in 1946 for a period of 50 years. The project was subsequently acquired by the Oregon Trail Electric Cooperative. In 1995, the Cooperative determined that the project was no longer economic and elected to decommission it rather than seek renewal of the federal license from the Federal Energy Regulatory Commission. Four years later, in 2000, the Cooperative leased the water rights associated with the project to DWR for five years, and the lease was subsequently renewed several times. Warm Springs Hydro, LLC, acquired the land and other rights associated with the hydro project and, in 2015, obtained a five-year extension of the lease for in-stream flows from DWR.
The Court of Appeals Decision
Concerned that Warms Springs Hydro intends to reconstruct a hydroelectric project after the current water lease expires in December 2020, WaterWatch sued. It argued that, under ORS 543A.305, the water rights associated with the hydroelectric project automatically converted to a permanent in-stream flow in 2000, five years after the water right ceased being used for hydroelectric production in 1995. If this reading prevailed, the conversion of the water right to an in-stream flow held in public trust by the DWR would preclude the use of the original water right for any new hydroelectric project.
The DWR, joined by Warm Springs Hydro, on the other hand, argued that ORS 543A.305 requires only a “use” of the water right, and does not require the water right to be used for hydroelectric production to prevent it from being converted to a permanent in-stream flow. Because DWR’s leases of in-stream flow rights from water rights holders are recognized as a valid “use” of water under ORS 537.348, that “use” continued from the time DWR initially leased the in-stream flows from the Oregon Trail Cooperative in 2000 and was extended with each subsequent renewal of the lease, including the current lease with Warm Springs Hydro. Under this reading, ORS 534A.305 would result in a conversion of the water right to a permanent in-stream flow only after expiration of the in-stream flow leases, which would not occur until 2025, assuming the water right is neither re-leased or used for a new hydroelectric project.
Relying on Oregon water law precedents that recognize water “use” as a term of art that includes both consumptive uses like irrigation and non-consumptive uses like hydroelectric production, the Court of Appeals concluded that the term “use of water” in ORS 534A.305 includes all “uses” of water that are recognized as valid under Oregon law. DWR leases of water rights for in-stream flows are recognized as a valid “use” of water ORS 537.348. Accordingly, the Court concluded, the DWR leases of the water rights for in-stream flows constitute a valid “use” under the statute, and prevent the water right from being converted to a permanent in-stream flow by operation of ORS 534A.305.
Implications of the Decision
The decision demonstrates the importance of water rights to hydroelectric power producers, especially in the Western United States, where prior appropriation doctrine prevails. As a result of successfully defending its decision, Warm Springs Hydro retains a water right with a priority date of 1905, likely among the most senior water rights in the Powder River basin. If it had lost the decision, to move forward with a new hydroelectric project, it would have to obtain a new water right. If a new water right could be obtained at all – and new water rights are severely restricted in many Western watersheds that are considered at or beyond their capacity for new appropriations – it would be junior to every other water right in the basin, making it subject to restriction whenever necessary to meet the needs of senior rights holders. These limitations on water use could have serious repercussions for the economic viability of any new project.
In addition, the case demonstrates the potential value of water rights associated with hydroelectric projects, especially older projects, and the wisdom of taking steps to preserve those rights when an old project is decommissioned. In short, hydroelectric owners need to consider water rights at every stage of a project’s life, from initial licensing through decommissioning.
Swiss food and beverage giant Nestle S.A. is changing course in its waters business, a shift that could lead to the company unloading a part of the business that includes two Lehigh Valley bottling plants and about 500 local employees.
Nestle announced the “new strategic direction” Thursday, after its board of directors approved a sharpened focus on the company’s international brands such as Perrier, S.Pellegrino and Acqua Panna.
The board decided that its regional spring water brands, including Deer Park, purified water business and beverage-delivery service within its Nestle Waters North America unit don’t align with the new focus.
So Nestle is exploring strategic options, including a potential sale, for the majority of its Nestle Waters business in North America.
The review, which is expected to be completed by early 2021, includes the company’s two Breinigsville bottling facilities, which employ about 500 workers, confirmed Nestle Waters spokesperson Alix Dunn. The facilities produce Deer Park spring water and Nestle Pure Life bottled water, which is then distributed to major retail and grocery customers throughout Pennsylvania and the mid-Atlantic.
Just three years ago, Nestle completed a $79 million expansion that added three high-speed bottling lines to the local Nestle Pure Life bottling facility as the company worked to keep up with demand for healthier beverage options. The year before, in 2016, bottled water outsold carbonated soft drinks in the United States for the first time.
But times change, with consumers now opting for sparkling or flavored waters and with heightened criticism surrounding plastic waste.
Nestle Waters only logged 0.2% organic growth in North America last year, slightly positive because of price increases, according to Nestle’s 2019 annual review. To try to fix what was dubbed an underperforming business in the review, Nestle announced in October it was integrating its waters business into the group’s three geographical zones to boost local expertise, quicken its response to changing consumer preferences and create synergies.
As part of its announcement Thursday, Nestle also pledged to make its global water portfolio carbon-neutral and replenish watersheds by 2025.
“The creation of a more focused business enables us to more aggressively pursue emerging consumer trends, such as functional water, while doubling down on our sustainability agenda,” Nestle CEO Mark Schneider said. “This strategy offers the best opportunity for long-term profitable growth in the category, while appealing to environmentally and health-conscious consumers.”
Excluding the international brands Nestle will focus on, the Nestle Waters business in North America had sales of 3.4 billion Swiss francs, or about $3.6 billion in U.S. dollars. Aside from Deer Park and Nestle Pure Life, it includes brands such as Poland Spring, Ozarka, Ice Mountain, Zephyrhills and Arrowhead.
Nestle Waters has a 25-year history in the Lehigh Valley, a period during which its employment here has increased by more than 500%.
In 1995, the company opened its first Lehigh Valley bottling plant with about 75 local employees. About a decade later, Nestle Waters spent $116 million to expand and build its second local facility: a 580,000-square-foot bottling plant. The two plants’ combined payroll represents more than $36 million.
A federal court trial underway in San Francisco could spell the beginning of the end of water fluoridation in America, potentially affecting drinking water for hundreds of millions of people across the U.S.
Although fluoride can occur naturally in water, many water utilities add the chemical with the goal of improving dental health. But an alliance of groups led by Food & Water Watch, a government accountability nonprofit, have sued the Environmental Protection Agency to force it to limit or ban adding fluoride altogether. They contend that the chemical presents an “unreasonable risk’’ of causing neurological damage, especially to young children and babies in the womb.
In opening statements today, plaintiffs lawyer Michael Connett said it ”will be undisputed in this case that babies who are bottle-fed with fluoridated water receive the highest doses of fluoride of any age group.” At the time of “their greatest vulnerability, we are exposing infants, often from the poorest, most disadvantage communities, to a very high burden of fluoride,” Connett said.
But James Do, a Justice Department lawyer representing the EPA, said there are too many ”uncertainties and inconsistencies” in the evidence. “Let’s be one hundred percent clear here,” Do said. ”If EPA could conclude that there was an unreasonable risk from water fluoridation, EPA would regulate.”
As reported by FairWarning, water agencies first began adding fluoride in the 1940s, and today nearly 75 percent of Americans on public water systems are served fluoridated water. Fluoridation has been a lightning rod for crackpot conspiracy theories, including that it is part of a government plot to achieve mind control. Despite the outlandish nature of these fever dreams, fluoride is far from a benign chemical, health experts say.
As things stands, the Centers for Disease Control and Prevention (CDC) has set an advisory limit of 0.7 parts of fluoride per million parts of water as the optimum level to help prevent tooth decay while avoiding other problems associated with excessive fluoride exposure. These include dental fluorosis—which can lead to severe staining of the teeth, enamel erosion and pitting—and at much higher exposure levels skeletal fluorosis, a disease associated with joint pain, fractures and the bone disorder osteosclerosis.
But the EPA, which regulates drinking water quality, has not acted to limit the amount of fluoride that can be added. It requires that when fluoride concentrations exceed 2 parts per million parts that customers be alerted, and sets a maximum level of 4 ppm—an allowance for water systems with high levels of naturally occurring fluoride.
According to the CDC, of approximately 275 million Americans on public water systems, more than 200 million are served water with fluoride added. An analysis by the Environmental Working Group, a research and advocacy organization, found that about 30 million people receive tap water with fluoride levels higher than the CDC recommendation.
Medical and dental authorities say that a small dose of the chemical is beneficial for dental health. The CDC claims that fluoridation reduces cavities by about 25% in children and adults. Still, a growing body of evidence suggests that Americans are routinely exposed to more fluoride than is good for them.
Experts point out that people already receive a daily dose of fluoride in toothpaste and mouthwash, and in many bottled drinks and processed foods. A key focus of the federal trial is a growing stack of scientific literature showing potential neurological harm from even low levels of fluoride.
In 2016, a 13-year study conducted in Mexico found that higher prenatal exposures to fluoride were associated with lower intelligence test scores for children later on. Between 2018 and 2019, several studies from Canada found similar effects, including that more fluoride in the urine of expectant mothers corresponded with an IQ loss in male children, and that youths from areas with fluoridated water had a higher prevalence of ADHD.
The EPA has asserted that there isn’t enough evidence showing neurological damage from low levels of fluoride, and that the benefits of fluoridation outweigh the risks.
The case before U.S. District Judge Edward Chen began its slow road to trial in 2016, when the plaintiffs petitioned the EPA to begin the process of banning fluoridation. A court subsequently denied the EPA’s motion to dismiss the petition, setting the stage for the legal showdown. In the months leading up to the trial, judge Edward Chen made several rulings that carry the potential to shape its outcome, including one that bars the EPA from providing evidence of fluoride’s health benefits.
The case, being tried without a jury, was filed under the federal Toxic Substances Control Act, and this is the first time a citizen’s petition under that law has made it to the trial stage, Robert Sussman, a former EPA deputy administrator, told FairWarning. “This is very much a precedent setting case which is going down a road nobody’s traveled down before,” Sussman said.
If the plaintiffs are successful, the case won’t necessarily signal the end to water fluoridation, but could cause the EPA to limit how much fluoride can be added. Any new rules could take years to implement.
“This is a good public health exercise,” said Mike Keegan, regulatory analyst for the National Rural Water Association, which represents officials of small community water systems. “You want to make sure this is an asset you’re putting into the water supply.”
This story was produced by FairWarning (www.fairwarning.org), a nonprofit news organization based in Southern California that focuses on public health, consumer and environmental issues.
Study issued Tuesday looks at causes of warming water on Snake and Columbia rivers
By Eric Barker, of the Tribune
The Environmental Protection Agency issued a report Tuesday detailing summertime water temperature problems on the lower Snake and Columbia rivers and assigning significant responsibility to federal dams.
The report said dams on both rivers play a role in raising water temperatures above 68 degrees — the state water quality standards of Washington and Oregon, and the point at which the water becomes harmful to salmon and steelhead. The causes of the increasing water temperatures are known as Total Maximum Daily Load, or TMDL.
But federal authors also noted the Snake River often exceeds temperature standards before it enters Washington from Idaho, as does the Columbia River when it enters the state from Canada.
The report, that is being released for public comment, is likely to play a role in the long-simmering debate over the role dams play in the decline of threatened and endangered Snake River salmon and steelhead. In addition to being a source of mortality to juvenile fish during their migration to the Pacific Ocean, the dams can also harm returning adults. By slowing the flow and increasing the surface area exposed to the sun, the dams cause the Snake River to increase as much as 5.7 degrees, according to the report.
Temperatures higher than 68 degrees can cause adult fish to stall during their return from the ocean and in some cases, such as 2015 when the rivers warmed into the 70s and stayed there for weeks, it can lead to significant mortality. That year, much of the Columbia and Snake river sockeye runs were wiped out by hot water.
Other sources of heating identified by the report include water entering from tributaries; regulated discharges, known as point sources, from things like factories or municipal wastewater treatment plants; and from increased air temperatures attributed to climate change.
But the dams play an outsized role.
“EPA’s analysis of the cumulative nonpoint source heat loading from dam impoundments shows that the dam impoundments have a greater temperature impact than point sources and tributaries,” according to the report.
Environmental groups hailed the report Tuesday as a needed step toward lowering temperatures and improving conditions for salmon and steelhead. Following the 2015 heat event that hammered sockeye, a coalition of groups including Columbia Riverkeeper, Snake River Waterkeeper and Idaho Rivers United went to court to force the EPA to finish writing the report that had been stalled for nearly two decades.
“We are pleased that it’s done and identifies the hot water problems on the Columbia and Snake rivers,” said Brett VandenHeuvel, executive director of Columbia Riverkeeper.
The document is not prescriptive and it will largely be up to the states to determine how water quality problems identified in the report should be addressed. VandenHeuvel said breaching the four lower Snake River dams would help meet water quality standards as well as boost salmon and steelhead.
“The water temperatures in the Snake are so hot in the summer that I think dam removal is the best way to restore salmon and provide water cool enough for their survival,” he said.
That type of prescription or calls for more water to be spilled at dams troubles Kurt Miller, executive director of Northwest River Partners. Given that the Snake and Columbia rivers are often overheated when they enter Washington, he would like regulators in Oregon and Washington to reexamine their water quality standards.
“The states may have established water quality standards that are unattainable even if the lower Snake and mid-Columbia river dams were not in place,” he said. “It would be unfair to penalize the communities that rely on hydropower for river temperatures way beyond their control.”
Two Democratic lawmakers have introduced a bill to block the implementation of a Trump administration rule limiting the scope of bodies of water that fall under federal jurisdiction.
House Committee on Transportation and Infrastructure chair Rep. Peter DeFazio, of Oregon, and Chair of the Subcommittee on Water Resources and Environment Rep. Grace Napolitano, of California, submitted a bill to block the Navigable Waters Protection Rule finalized in April.
The 1972 Clean Water Act made it illegal to discharge any pollutant into “waters of the United States,” unless a permit was obtained.
The exact definition of “waters of the United States” was contested in courts for decades.
The Obama administration attempted to clarify the rule by expanding the definition to include more water bodies that flow directly or indirectly, to navigable waters.
The Trump rule eliminated the 2015 rule and narrowed the definition to four types, leaving other waters under often more lenient state jurisdiction.
The bill’s authors said the Trump administration wrote the rule to benefit polluters at the expense of the health of people who depend on those waters.
“By removing critical protections at the behest of industry, Trump’s Dirty Water Rule will make streams and waterways more vulnerable to pollution, which is devastating for the 117 million Americans who rely on these waterways for drinking water,” said DeFazio.
More than a dozen leading environmental organizations have backed the bill, including Earthjustice, the League of Conservation Voters, the Environmental Law and Policy Center and the Sierra Club.
Supply chain chaos caused by COVID-19 is making milk oversupply problems even worse, yet Oregon officials consider permitting new mega-dairy.
Salem, OR – Stand Up To Factory Farms, a broad coalition of environmental, food safety, family farming, and animal welfare organizations fighting to protect Oregon from mega-dairies, calls on Governor Brown and the Oregon Department of Agriculture to protect small dairy farmers during the COVID-19 outbreak and enact a mega-dairy moratorium on new and expanding dairies.
In response, the Stand Up to Factory Farms Coalition issued the following statement:
“Today we call on Governor Brown to take swift action to protect Oregon’s small dairy farmers from the impact of COVID-19 by enacting a mega-dairy moratorium. Oregon’s small dairy farmers have struggled enough under mounting pressure from Oregon’s mega-dairies to get big or get out. Mega-dairies have been flooding the market with milk for years, contributing to Oregon losing more than a third of its licensed dairies since 1997 with an average of nine family dairy farms going out of business each month between 2002 and 2007.
Corporate consolidation of dairy processing and a shift towards mega-dairies and away from family farms have weakened our food system and resulted in an oversupply of milk. Small farmers, already struggling, are forced to dump milk while supply chain disruptions throw the market into further chaos, leaving farmers with no market while people lack food access. This is the worst possible time to add to the pressure on small farms by greenlighting more mega-dairies. We need to ensure that Oregon’s small dairy farmers are not further endangered by rebuilding our dairy market in a way that works for small farmers and is strong enough to withstand pressure from future crises. Oregon deserves a food system that prioritizes small farmers, produces healthy food for consumers, and protects our environment. Mega-dairies won’t get us there.
Yet Governor Brown and her Oregon Department of Agriculture are signaling that they will permit a new mega-dairy during this crisis. Easterday Farms would confine nearly 30,000 cows on the site of the disastrous Lost Valley Farm. Failing to learn from the Lost Valley debacle was bad enough. But allowing another mega-dairy in the midst of a crisis of low milk prices coupled with a crisis of supply chain disruptions from COVID-19 would simply be reckless. Governor Brown needs to prioritize protecting Oregon’s small dairy farmers now more than ever and immediately enact a moratorium on mega-dairies.”
Four years ago, nine activists in the small town of Weed, Calif., were railing against an Oregon timber company threatening the city’s water supply.
Then the “Weed 9” met an unexpected outcome: They got sued.
“It was devastating,” said Bob Hall, one of the nine and the former mayor of the timber town at the base of Mount Shasta, about 50 miles south of the Oregon border.
With the help of First Amendment experts, the group got the lawsuit tossed by filing a motion under California’s anti-strategic litigation against public participation, or anti-SLAPP, law.
The law is designed to shield defendants from abuses of the legal system, said Evan Mascagni, the policy director of the Public Participation Project.
“That’s the whole point of SLAPPs,” he said. “You want to drain your target financially and also psychologically. They drag you through the court system for years.”
Now, the Weed 9 are going one step further. Two weeks ago, they filed a “SLAPPback” lawsuitagainst the attorneys who represented the timber company. They are seeking damages.
Weed’s water war has raged for years.
The small — population 2,700 — timber town sits at the edge of the Shasta-Trinity National Forest. It was established by International Paper Co. for its employees decades ago.
For more than 110 years, Weed has drawn its water from Beaughan Springs, a gravity-fed spring at the base of the dormant Shasta volcano.
The paper company owned the land where the spring sits, and it leased the water for years to the town for $1 per year.
International Paper sold the property to Roseburg Forest Products Co. in 1982.
When the city’s water lease ended in 2016, it didn’t have an alternative water source and was forced to negotiate a new lease with Springfield, Ore.-based Roseburg. The city declared a state of emergency. It ultimate reached a new deal with Roseburg. The cost: nearly $100,000 per year.
At the same time, Roseburg was selling water from the spring to Crystal Geyser Alpine Spring Water, which markets its bottled water around the world.
Weed’s leaders spoke out. Hall — the 2014 Weed “Citizen of the Year” and a City Council member — worked with a group and formed Water for Citizens of Weed California (WCWC) to protest.
They claimed the new lease violated California’s water rights system; the city, not the timber company, had a historic right to that water. The City Council passed a resolution asking the state to declare that to be the case.
Roseburg struck back with a lawsuit that asked a state court to adjudicate the water rights issue.
But in an unusual twist, the lawsuit didn’t just challenge the city. It also named WCWC and nine individual citizens who had campaigned against Roseburg — even though they didn’t claim any right to the water themselves.
Hall said the lawsuit was designed to shut them up. And it was scary.
“It was, ‘Oh, shit,'” he said. “It was really just intimidating. I had never felt that before.”
Hall and WCWC were immediately put under financial strain. After getting help from the First Amendment Project and others, they filed a motion to get out of the case under the anti-SLAPP law.
At a hearing on the motion in December 2017, Roseburg’s lawyers argued that the case was about cleaning up any “cloud” surrounding who owned the right to the water. And they said Hall and the Weed 9 had threatened their own lawsuit.
California Superior Court Judge Karen Dixon wasn’t convinced. She ruled that the Weed 9 weren’t making a specific claim to the water rights.
“I couldn’t help but notice,” she said, according to a transcript, “that the only reason that these names came specifically to the attention of” Roseburg “is because these were the private citizens who were exercising their privilege and their rights under the Constitution.”
Multiple requests to the law firm, Sacramento-based Churchwell White LLP and the lawyers named in the new case, Barbara Brenner and Robin Baral, who now works for another firm, were not returned. Roseburg similarly did not respond to emails and phone messages.
The prospects of the Weed 9’s new lawsuit are unclear.
That’s mainly because there haven’t been many SLAPPback suits filed, something the Weed 9’s new attorney is well aware of.
“In my 23 years of experience,” said Lauren Regan of the Eugene, Ore.-based Civil Liberties Defense Center, “this is the first SLAPPback that we have filed.”
SLAPPback lawsuits are “rare, rare, rare,” said James Wheaton of the First Amendment Project, who helped draft California’s anti-SLAPP laws.
Typically, once the target of the lawsuit gets the first case thrown out, they don’t want to deal with the costs and stress of more litigation. California’s SLAPPback law is also relatively new; it was enacted in 2005.
Wheaton worked on the first phase of the Weed 9 case and helped get it tossed. He said it is an exception.
“The Weed 9 is so frivolous and so obviously not directed at the people they sued,” he said. “They never should have been sued.”
Often in SLAPPback cases, the company can defend itself by saying it was following the advice of its lawyers by bringing the first suit, Wheaton said.
That doesn’t fit here, however, because the Weed 9’s lawsuit targets the attorneys themselves.
Regan said her clients, several of whom are in their 80s and are former public servants in Weed, are especially motivated.
“They really felt like they wanted to send a message that these type of cases have really undemocratic consequences,” she said.
Mascagni, of the Public Participation Project, said the key criteria in a SLAPPback suit is whether the Weed 9 can show they were the target of a “malicious” prosecution.
And while SLAPPback cases have been uncommon in California, in theory, anyone who prevails in getting the initial case dismissed under California’s anti-SLAPP lawsuit is on solid ground for the SLAPPback suit.
“I’m interested to see how it plays out in this case,” Mascagni said.
The lawsuit between Roseburg and the city eventually was settled for undisclosed terms.
For Hall, the former mayor, major principles are at stake.
“My main motivation now is to bring light to this,” he said. “Freedom of speech is really something you got to defend.”
WASHINGTON, D.C. – Oregon’s U.S. Senator Jeff Merkley, a member of the Senate Environment and Public Works (EPW) Committee, announced today that the Senate’s 2020 water resources legislation contains major victories for communities across Oregon.
Merkley has spent months working with community leaders all over the state developing detailed proposals to address local challenges. As a member of the EPW Committee, Merkley was involved in bipartisan negotiations to develop today’s legislation, and fought hard to include Oregon’s priorities. The draft legislation passed the Senate EPW Committee with significant bipartisan support this morning.
“From coastal communities whose ports power their local economies, to cities and towns all across Oregon that need clean and affordable drinking water, this legislation is a big victory for Oregon,” said Merkley.“Water is essential to our health and our economy. I fought for major investments in our water and port infrastructure because these investments will create jobs now and benefit our communities’ well-being for many years into the future.”
With committee passage today, the next step for the legislation is consideration by the full Senate.
Specific victories in today’s legislation include:
Helping Smaller Communities With Technical Support for Water Treatment: Many communities in Oregon have expressed how difficult it is to access the technical knowledge and professional guidance needed to design and finance water projects, and requested an expert to travel from community to community to discuss the best strategies for success. That’s exactly what Senator Merkley got into the bill: authorization for $10 million per year to fund a program made up of experts that can travel to communities to offer on the ground assistance and support to owners and operators of small and medium public-owned treatment works.
Willamette Locks Transfer:The Willamette Falls Locks are an old Army Corps property that a local entity has proposed redeveloping for the benefit of the local community. This redevelopment cannot take place until the Locks are “deauthorized” by the Army Corps. Senator Merkley successfully included a provision allowing the Corps—after performing upgrades and making the site suitable for use—to deauthorize and transfer the Locks to a local Commission.
Army Corps Assistance for Projects in Hood River, Bandon, and Astoria: Senator Merkley successfully included a provision that will require the Army Corps to assist local communities in Oregon with preparing for their 7001 consultation process. This is the first step to being included in the Army Corps’ 7001 Report, which enables the project to be federally authorized and funded.
The local projects that will be assisted by this provision are:
Hood River Salmon Recovery: Study existing habitat conditions and recommend actions that will improve salmon habitat functions at the mouth of the Hood River and its confluence with the Columbia River.
Dredging at the Coquille River/Port of Bandon: Study how the Corps can assist the Port of Bandon with an increase in silting and shoaling adjacent to, but outside of, the federal channel, which is currently dredged by the Corps.
Dredging at the Port of Astoria: Study the capability of the Corps to increase the frequency and depth of its dredging of the Port to allow the Port to focus on its landside infrastructure.
Helping Small Communities Move Army Corps Projects Forward: Many small and disadvantaged communities want to implement Corps-related projects, but don’t have the resources to meet local cost-sharing requirements. This provision establishes a cost-waiver program under which communities who need it can get local cost share reduction of anywhere from 10 to 100 percent, allowing many more communities to implement or construct beneficial projects, including for storm damage reduction.
Addressing Microplastics Pollution: Microplastics and microfibers have become ubiquitous in our water supply, threatening both human health and our environment. Building off of his previous bipartisan work to address the microplastics crisis, Senator Merkley was able to successfully include a provision in today’s bill to create a grant program that will begin to tackle this urgent public health threat. This $10 million grant program will provide funding to wastewater treatment plants that want to improve their facilities to reduce and remove microplastics and microfibers from their treated water.
Cutting Red Tape to Help Local Communities Access WIFIA Loans: Senator Merkley created the Water Infrastructure Finance and Innovation Act (WIFIA) program to help local communities access affordable financing for water infrastructure projects, after hearing from local leaders across Oregon about the difficulty of securing affordable loans for these essential projects. In today’s legislation, Senator Merkley successfully included a provision that will make it easier for smaller communities to access WIFIA loans, by removing an overly burdensome requirement that WIFIA applicants provide two credit rating letters. Getting a second letter is often a time-consuming and unnecessary expense for applicants that lengthens the application process. Today’s provision instead changes the requirement to one opinion letter sufficient to determine creditworthiness, smoothing the application process and making it easier for local communities to move ahead with projects that will provide critical water infrastructure updates and create jobs at the same time.
Helping Small and Underserved Communities Access Water Efficiency Upgrades: Many small or disadvantaged communities have trouble accessing—or, in some cases, are barred from accessing—federal programs to help them with water efficiency measures. Senator Merkley successfully included a provision to create a grant program specifically designed to help entities like this replace or repair equipment designed to improve water efficiency. This program would help smaller and underserved communities in Oregon and across America access badly needed resources to make these upgrades to water systems.
Using Leftover Dredging Material to Help Local Communities: Dredged materials are left over after the Corps constructs a new project or dredges a harbor or channel. This provision requires that the Corps evaluate the environmental benefits and impacts of reusing that material to create natural infrastructure.
Investing in Alternative Wastewater Systems: This provision reauthorizes a grant program that helps entities with the engineering, design, and construction of alternative water source projects, including anything that improves the conservation, management, reclamation, or reuse of water, stormwater, or wastewater. This program helps to conserve water resources across the nation and to invest in new strategies that could assist with water conservation and reuse in the decades to come.